Bikie laws sicken civil liberties

There is something unhealthy in the legislative air. In Queensland, a renewed effort has commenced against the bikie gangs that have plagued the law and order landscape of several states. Victoria and NSW are making murmurings that they might follow suit.

Last week, the Queensland parliament passed three bills that would effectively classify 26 bikie gangs as 'criminal organisations'. The implications of this designation are extensive and extend beyond the sunshine state. 'Bikie' members are prohibited from assembling. They will be a provision of a special 'bikie jail' termed colloquially a 'clubhouse' for convicted members. The terms of incarceration may also be mandatory; and there will be job bans. Special treatment will be meted out.

The Queensland Police Minister Jack Dempsey explained his rationale before parliament, citing that customary hearth and home image of security and protection. 'People need to know when they go to bed at night and the darkness of the evening comes over, that they can sleep safely in their beds.'

The flipside of such protective romanticism is that of arbitrariness. This was reflected in the views of Queensland Premier Campbell Newman who said, 'Frankly I don't care how these people go to jail.' Premature adjudication is a dangerous tendency in any process, but notably in one where legal fairness is considered the norm.

Political commentator Malcolm Farr, himself a bike enthusiast, termed such measures and rationales 'utter tosh'. It was a 'bogeyman story' to tell the frightened kids. It was irrational. And more to the point, such laws were dangerous to everyone. Farr is careful not to excuse bad behaviour on the part of the gangs. They are, for much of their part, 'frauds', 'thugs' and 'grubs'.

The medicine, however, is bound to kill that frail patient known as civil liberties. How to sort the wheat from the chaff in policing a special group of law- or non-law-abiding citizens? In Farr's words, 'these laws will be applied to others who wouldn't know a bikie from a brickie'.

What is being touted here is a police state response, rather than a measured, legal program. Broad brush strokes in legal responses tend to be disastrous. Selective punishment of groups, assaults on the assembly of individuals, and selective prisons are not expressions of sober policing but marauding heavy-handedness. In 2009, Moira Rayner, in a survey of the NSW government's attempt to rush through extreme bikie laws, noted that it was 'never a good idea to make law on the run'.

And we've seen it all before. In 1994, the New South Wales parliament enacted the Community Protection Act with a specific intent of permitting the NSW Supreme Court to order the continued detention of Gregory Wayne Kable, a prisoner slated for release. He had been deemed a threat to the public after being convicted for manslaughter for killing his wife. The High Court found in 1996 that the law was unconstitutional, citing that the Court had been vested with non-judicial powers offensive to Chapter III of the Constitution. The saga has persisted.

Thus began a string of decisions from the High Court finding organised crime control laws as incompatible with the State judicial process. Some cases such as South Australia v Totani and Wainohu v New South Wales found against them. Others, such as the Gypsy Joker's Motorcycle Club Inc case, found the laws compatible. The result has been unsatisfactory, giving us, in the words of Cheryl Saunders, a 'messy jurisprudence'.

The Kable principle remains as confusing as ever as to where the boundary lies in granting state courts powers excessive powers of crime control over specified groups. The High Court justices are reluctant to speak with one voice on the subject. It says much about the muddle-headed thinking on the subject of civil rights in this country. The states have profited in this climate of obtuseness. A legislative lottery has sprung up with attempts, like Newman's, to pass laws that push the bar in terms of how groups can be targeted as dangerous to the community.

In Victoria, laws have been drafted to be consistent with the High Court interpretation, though remain on the shelf because evidence is required in a court to demonstrate that a group is a criminal organisation. This, at least, is an inbuilt restriction. The Queensland laws, if they pass muster in any legal challenge, have no such limit. They will be bliss for the police state advocates. First came the bikies - then came everyone else.